Published 4:00 am, Friday, March 23, 2007

2007-03-23 04:00:00 PDT Sacramento -- For the second time in two weeks, San Francisco Public Defender Jeff Adachi warned lawmakers Thursday that legislation seeking to address the U.S. Supreme Court's rebuke of California's 30-year-old criminal sentencing scheme would vest too much power with judges.

Adachi has emerged as a persistent critic of the legislation, which lawmakers are working to pass as a temporary solution to the high court's ruling that state sentencing laws are unconstitutional. Without the legislation, judges won't know how to sentence convicted defendants and cases may have to be retried, proponents of the bill say.

"Our courts are in a state of chaos," said Sen. Gloria Romero, D-Los Angeles, the author of SB40. "The point of SB40 is to maintain stability. Make no doubt about it ... from county to county, judges are wondering, 'What do we do?' "

Romero said the current system has been found to violate the right to a jury trial by giving judges the authority to add years to a prison term based on facts that they -- not a jury -- determine.

Her bill attempts to satisfy the court's concerns by changing current law to give judges discretion to pick any of three possible terms spelled out in the penal code without requiring any factual finding.

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"That's the fundamental question. Do you give complete power to a judge to decide the appropriateness of a sentence or do you have some criteria that they should follow? My fear is that if you give complete power to judges, there is the probability of abuse," he said Thursday after the Assembly Appropriations Committee voted 14-1 to approve the bill. Committee Chairman Mark Leno, D-San Francisco, was the lone dissenter.

Adachi was in Sacramento last week as well, making his case in the Assembly's Public Safety Committee, which passed the measure in a 5-2 vote.

The 1977 California law that the Supreme Court struck down in January was originally designed to promote more consistent sentences by eliminating parole boards' authority to set sentences and give the power to the judges instead. The judges would be given a choice of three sentences for each crime, a longer term if the bench believes there were aggravating factors and shorter term if there were mitigating factors.

The case before the Supreme Court was a trial involving a former Richmond police officer who was found guilty of sexually abusing his son. Under state law, he was punishable by six, 12 or 16 years in prison.

The judge in the case chose the longest term after finding that the boy was particularly vulnerable, and that the defendant was a danger to the society because he had committed the crime with great violence. Those issues had not been submitted to the jury.

The Supreme Court on Jan. 22 ruled that it is unconstitutional for judges to give the longer sentence based on evidence not presented in the jury trial.

Adachi argued that studies have shown that giving such discretion to judges would lead to not only inconsistent sentences, but longer terms. He estimates the longer terms would cost California taxpayers nearly $200 million to house the inmates in an already overcrowded prison system.

Romero said Adachi's numbers are exaggerated, pointing to the Assembly Appropriations Committee's own estimate, which is $13 million. Besides, the senator said, she has added a new provision in the bill that would require the Department of Corrections to track whether defendants are really getting longer sentences. By the time the measure expires at the end of next year, lawmakers will be able to have enough data to see if SB40 worked appropriately

The state Assembly is expected to vote on SB40 on Monday before returning the revised legislation to the Senate later in the week.